Sacchetti v. United States

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No. 15-1399C
Filed: November 16, 2016 FILED
* * * * * * * + * l. * * + * * *,1 :F* * Nov | 6 2016
* U.S. COURT OF
MARK JOSEPH SACCHETTI and FEDERAL CLAIMS
JOHN STEPHEN SACCHETTI
Plaintiffs.
Pro Se; Statute of Limitations;
Patent Infringement; Gopyright;
UNITED STATES,
Substitution of Pafi After Death.
Defendant,
CYRACOM INTERNATIONAL, LLC,
Thi rd-Party Defendant.
* * *,t * * * * * * *:! * *:t * x **
John Stephen Sacchetti, pro se, Lady Lake, Florida.
Mark Joseph Sacchetti, pro se, Los Angeles, California.
William Joss Nichols, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, Washington D.C., for defendant. With him was John J. Fargo,
Director, Intellectual Property Staff, Commercial Litigation Branch, and Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil Division, Department of Justice,
Washington, D.C.
Randall Steven Papetti, Lewis and Roca, LLP, Phoenix, Arizona, for third-party
defendant CyraCom International, LLC.
OPINION
HORN. J.
FINDINGS OF FACT
Pro se plaintiffs John S. Sacchetti and Mark J. Sacchetti filed a complaint in this
court in the above-captioned case on November 19,201s. Plaintiffs begin their complaint
by alleging that they are the owners of two patents, design patent number 382,264 (the
'264 Patent) and utility patent number 5,604,798 (the'798 Patent), as well as a trademark
for the phrase "The You Talk rwo Phone," stating that they are the "full and rightful owners
and creators of a unique original invention we named and subsequen y had trademarked
as 'THE YOU TALK TWO PHONE'@, U.S. PATENT No. DES-382, 264, U.S. UTtLtry
rs.s ?01,{ 1P00 0008 1013 1605
701,9 l,e0B 0000 1093 101,e
r'' 701,{ Ie00 0000 5093 1?51
PATENT No. 5,604,798, U.S. TRADEMARK -SN 741450292*"*.' 1 Plaintiffs then set forth
what they allege is a "list of grievances and formal proofs . . . against THE FEDERAL
GOVERNMENT OF THE UNITED STATES OF AMERICA, and its various agencies,
spanning all three branches, both on and off domestic soil, in addition to all legally bound
private or publicly owned corporate entities, subcontractors, or goods and services
suppliers." Plaintiffs allege that certain "agendas, programs, and . . . ancillary commerce
and operations" of these parties "compromis[ed] a willful and global infringement of
intellectual property's, owned and legally maintained, by Sacchetti, Sacchetti et, al.
!" In particular, plaintiffs allege that the "global manufacturing" of "DUAL-HANDSET
TELEPHONES," which "comprise illegal and inferior'MARKET COPIES' OF 'The You
Talk Two Phone," constituted an "unethical and illegal use of Private Intellectual
Property Rights" by "The United Stafes Federal Governmenf, and awarded
subcontractors." Plaintiffs do not include details as to the dates or nature of the alleged
infringements of their intellectual property in their complaint, but instead appear to allege
that such details are included in letters sent to the President of the United States and the
United states commissioner of Patents, which they attached to their complaint, stating in
their comolaint:
[W'lith reference to the three page plea written to the president Of the
UNITED STATES, and the formal response to that package being answered
in writing along with a Confermation [sic] reference number from THE
WHITE HOUSE at the end of the return letter corespondance by THE
COMMISIONER OF PATENTS,-WE PRAY THE U,S.FEDERAL COURT
OF CLAIMS HEARS OUR CASE, AND FURTHERMORE, ALLOWS US TO
PRESENT OUR PROOFS OF PERSONAL AND PUBLIC RECORD IN
ORDER TO ACHIEVE A JUST END.
Plaintiffs conclude their complaint by alleging, without elaboration, that they are entiled
to "$200'000'000" in damages "FoR THE usE oF pRtvATE pRopERTy AND wtrH
RESPECT TO USC 1498a "
Attached to plaintiffs' complaint are 195 pages comprising, at least, 130 separate
documents. Among these documents are a letter to United states president Barack
Obama and a letter from the Office of the Commissioner for Patents at the United States
Patent and Trademark Office which appear to be the documents plaintiffs reference in
their complaint. The letter to President obama, dated February 23,2013 and signed by
both plaintiffs, begins:
usual sinqle handset that one misht be accustomed to Eeeinq: Aft;
1 All abbreviations, capitalization and emphasis, as well as any sentence structure,
grammatical, and spelling choices, are as they appear in plaintiffs'filings.
completing the first successful prototype, we were granted the following
U.S. oatents:
rDUAL TELEPHONE BASE"I U.S.PAT. 0-382264
rTHE YOU TALK TWO PHONE'l U.S. TRADEMARK FOR THE TTTLE
TTELEPHONE SYSTEM W|TH AUTOMATTC VOLUME CONTROLI
u.s.PAT. 5,604,798
[{uTrLrw- PATENT-(SCHEMATIC DTAGRAM) (THEORY OF
OPERATION)l...the gufsl
Plaintiffs then state that their letter "constitutes a citizen's appeal, in order to address
and correct an enormous, 'multi-agency oversight', on behalf of our Federal
Government." The February 23,2013letter to President Obama continues:
Our plea concerns the infringement of intellectual properties, taken and
presently in use by the Federal Government and it's awarded
subcontractors, to aid in the fulfillment of Presidential Mandate #13166,
which states that any and all individuals must be provided an
interpreter, or, what is referred to as a ,,remote, over the telephone
interpreter"', if said individual has a communications barrier due to a
lack of his or her proficiency in spoken English, This extension of The
American Disabilities Act, seeks equality and fair access to all ELp
(English-Language Proficiency) deficient individuals across the entire
range of state and federal governmental services available.
Since these legally mandated services require the use of a"
DUAL HANDSET TELEPHONE" at the site of the language ,,barrier";
and, since our technical utility patent, [TELEPHONE SYSTEM WITH
AUTOMATTC VOLUME CONTROLI U.S. PATENT # 5,604,798-
(encompasses our unique invention called .,THE yOU TALK TWO
PHONE"@ (U.S. REGISTERED TRADEMARK-(encompasses our
original design patent entifled IDUAL TELEPHONE BASEI; U.S. Design
Patent [D-3822641, first granted back in 1993, then suddentv ahd
mysteiously MIA (missing in action), finally resurtacing with differe;t fiting
data, and no valid accountable filing receipts or explanation from oir
prosecuting patent aftomey!
prosecutino patent attornevs; (see 9 page essay/analysis; entitled--
rTHE YOU TALK TWO PHONE'@D, are dwarfed in comparison to the
enormous commerce carried out by these companies, (AT&T)
?
(Language-Line LLC), and (Cyra-com intl./co./Noiance lnc.l, to whom
the United States Federal Government is in direct and legal partnership
with, as well as numerous other third-party start-ups, which have exploded
onto the scene since 1995 to the present, 2013, thereby comprising a
willfully ignored global and domestic infringement on intellectual
property!
Beinq that all the above mentioned corporate entities. as well as
the Federal l.P. Court circuit are not conducive to the independent
inventor / patent holder, all infrinqinq parties to this dav. continue to
remain untraceable, unaccountable, and by our definition of justice or
fair-play, TOTALLY Unacceptabte!l!!!t! M !
The letter ends with the following "Very Humble, Yet Very Warranted Requests":
1). A non-public, executive demand of fair and just restitution to all
offending or infringing parties, who are proven to have engaged in willful
and gainful commerce on top of exclusive or legal powers to rightfully
control or claim moneys within the laws of rightful term of the private
ownership of intellectual propeny . . . .
2). An Extension and Reinstitution of our patent portfolio . . . .
3). The reprinting of our two granted U.S. patents, as to reflect the true
and factual information, as these patents were both fully maintained,
and fully paid for in good faith!
The letter from the Office of the Commissioner of Patents to plaintiffs is dated July
16, 2013. The letter begins by stating that ptaintiffs' February 23,2013lefter to president
obama had been referred to the United states patent and rrademark office (uspro)
fo_r a response and noting that, in their letter, plaintiffs "request (1) ,restitution to
all
ott91!ino or infringing parties,'(2)'an extension and reinstitution of [your] patent portfolio,'
and (3) 'the reprinting of [your] two granted U.s. patents, as to reflect the true and factual
information."' (alteration in original). With regard to plaintiffs, first request, the letter states:
"the USPTO has no jurisdiction over questions of infringement and tne enforcement
of
patents. consequently, the USPTO does not have the authority to enforce your demands
against the parties that you allege have infringed your pateni." with regaid to plaintiffs,
second request, the letter states: "the uspro has no authority to length-en the ierm of a
patent othe-r than 35 usc S 1 s6. . . . The reasons in your letter for requesting
an extensron
of your utility patent's term do not appear to fit the criteria ouilined in 35-usc 156."
S
Regarding plaintiffs' third request, the letter states:
A filing receipt enclosed with your letter showed a different filing date than
that of your patents. However, the encrosed firing receipt is forlpplication
number 071888,214, and our database indicates that U.S. patent No.
5,604,798 issued from application number 081229,206, which is a different
application that was filed on April 18, 1994. U.S. Design Patent D382,264
issued from application number 291046,496 filed on November 16, 1995.
Among the many other documents included with plaintiffs' complaint are three
documents related to the intellectual properties apparently at issue in the plaintiffs'
complaint and letter to President Obama: the '264 Patent, the '798 Patent, and a
trademark for "The You Talk Two Phone." Plaintiffs include a page from the '264 Patent,
which states that the patent was for a "DUAL TELEPHONE BASE," was filed November
16, 1996, and was issued August 12, 1997. The only claim listed in the '264 patent is for
an "ornamental design for a dual telephone base, as shown and described" in a
description included with the patent. The '264 Patent lists its inventor as Mark J. Sacchetti.
Plaintiffs also include a page from the'798 Patent, which states that the patent
was for a "TELEPHoNE sYsrEM wtrH AUToMATtc voLUME coNTRoL," was fited
April 18, 1994, and was issued February 18, 1997. The abstract contained in the'79g
Patent states: "A You Talk rwo Phone is provided that is a true two handset telepnone
device. . . . The You Talk rwo Phone contains two handsets and circuitry that
automatically adjusts internal amplifier gain to compensate for the extra handset even
when not in use." The'798 Patent lists its inventors as John s. and Mark J. Sacchetti.
The only document plaintiffs include related to their alleged trademark is a Notice
of Abandonment from the United states patent and rrademark office, dated Decemoer
5, 1997. The Notice lists the trademark at issue as "THE you rALK TWo pHoNE" and
the applicant as Mark J. Sacchetti. The notice then states:
THE ABOVE IDENTIFIED TRADEMARK APPLICATION WAS
ABANDONED ON O9/18/1997 FOR THE FOLLOWING REASON:
APPLICANT HAS FAILED TO FILE A STATEMENT OF USE WITHIN THE
STATUTORY PER|oD. (TMDEMARK RULE 2.65(c)).
Plaintiffs also attach to their complaint several documents related to the three
companies mentioned in their letter to president obama: cyracom International, LLC;
Language Line, LLC; and AT&T, Inc. with regard to cyracom, plaintiffs provide an
undated document that appears to be a press release or advertisement from cvracom
stating: "ln 1995 cyracoms_breakthrough patented dual-handset phone tecirnorogy
revolutionized the delivery of Over-the-Phone interpretation." Plaintiffs also include what
appears to be press release from cyracom, dated September 26,20e7, stating that
"cyracom introduced its first patented dual-handset phone in 1995," which, the document
states, was "now known as clearlink(TM)," and that cyracom had now invented ,,the
industry's first dual-handset cordless phone, clearlink[M) cordless.,' plaintiffs also state
In a separate motion for assignment of pro bono counsel, discussed below, that, in ,,the
year 2008,"
John Sacchetti, now permanently disabled and receiving social security
disability insurance, walks into St, Vincent Catholic Hospital ilL-9:1A19919.s
Ca.foraMedicarerequiredcolonoscopy,,and'behold'THE'CYRACOM-
B LIJE,. D IJ AL.H A N D S ET.,S U B S C RI B E RLI N E " STYLE.''
ietepnone.rwo..oF..THEM..tN A LARGE METRaPoLTAN [sic]
HOSPITAL FACILITY!!
The document states that John Sacchetti "fell over in shock" upon seeing the device'
rin"rrv, praintitrs provide a letter, dated February 24,2010, from Mark and John Sacchetti
'264 and '798 Patents and
to thsC'EO of CyraCom, listing the full patent numbers for the
your
stating, presumably in reference to these patents: "lt has come to our attention that
is utilizing equipment and has been conducting and promoting commerce with
"ompiny
said equipment for quite sometime now."
with regards to Language Line, plaintiffs attach to their complaintwhat appears to
be a screensh-ot from Language Line's website, dated october 26, 2009, announcing a
"new telephone with dual handsets for a clear, three-way interpreter conversation." The
announcement refers to the device as the "Language Line{D Phone "
Regarding AT&T, plaintiffs provide a copy of a letter, dated May 3, 1994, from Mark
Sacchetti to RiAf, in which Mark Sacchetti proposed to grant AT&T "exclusive
manufacturing rights" to an undisclosed invention of Mark and John Sacchetti that they
believed wou-to re "a product comparable to the changing of LP's to the compact disc."
Plaintiffs also provide a June 28, 1994 letter from Mark Sacchetti to AT&T's Public
suggestions Analysis office stating that the letter was "introduc[ing]" AT&T to the
Sa6ifretti brothers; invention, "'The You Talk Two Phone'the world's very first, low-cost,
high quality [single-line, dual handset, self-powered] consumer telephone unit." (brackets
in-original) The letter included descriptions of the phone's features, a picture of the
device, and an offer to make AT&T the plaintiffs' "exclusive business partner in the
manufacture and marketing" of the device. Plaintiffs also include AT&T's August 10' 1994
response letter, which stated that the plaintiffs' "submittal does not contain anything novel
which would be of value to AT&T." The lefter elaborated: "[wie are familiar with the type
of telephone which you have described. However, the results of our most recent market
research studies do not indicate a sufficient level of interest in such an offering." An
additional letter from Mark Sacchetti to AT&T, dated October 12, 1994' is attached to
plaintiffs' complaint, but there is no indication of a further reply from AT&T among the
documents attached to the complaint. In addition, without explanation, plaintiffs also
provide what appears to be an article from the New York Times, dated March 25, 1999,
stating that AT&T had agreed to sell "AT&T Language Line," "its over-the-phone language
interpietation service," and that, after the sale, "Language Line will be a prefened supplier
of interpretation services for AT&T."
Defendant filed an answer to plaintiffs' complaint in which it admitted that USPTO
records indicate that plaintiffs were the inventors of the '264 and '798 Patents and that
Mark Sacchetti was listed as the "owner of the now-abandoned application for regishation
o
of the trademark 'The You Talk Two Phone," while denying that "The You Talk Two
Phone" is currently a USPTO-registered trademark. Defendant also denied plaintiffs'
allegation that the federal government has engaged in illegal use of plaintiffs' intellectual
property rights and asserted a defense to plaintiffs' complaint based on lack of subject
matter jurisdiction in this court. Defendant then moved the court to provide notice to third
parties CyraCom International, LLC, Language Line, LLC, and Legal Interpreting Services
(LlS). According to the government, "CyraCom, Language Line, and LIS may be obligated
to indemnify the government for any damages awarded to Plaintiffs. These companies
have each contracted with the General Services Administration ('GSA') to provide
interpretation services." Also, according to the government, the solicitation pursuant to
which these third parties contracted with the government contains a patent indemnity
clause, and, "[i]n light of Plaintiffs' allegations and the patent indemnity clause . . . the
above-identified companies may have an interest in this action within the meaning of
RCFC 14(bX1)."
Third-party defendant CyraCom International, LLC filed a motion to dismiss
plaintiffs' complaint, followed by an amended motion to dismiss, seeking to dismiss
plaintiffs' complaint for lack of subject matter jurisdiction pursuant to RCFC 12(hX3)
(2016), or alternatively, for failure to state a claim pursuant to RCFC 12(bX6) (2016).
Focusing on plaintiffs' allegation in their February 23, 2013letter to President Obama that
the alleged infringement has been taking place "since 1995," as well as the documents
attached to plaintiffs' complaint showing that CyraCom began offering dual-handset
technology in 1995, CyraCom argues that that the court lacks jurisdiction to hear plaintiffs'
patent infringement claims because the alleged infringement took place more than six
years prior to filing of the complaint and, therefore, "well over" the six year statute of
limitations prescribed by 28 U.S.C. S 2501 (2012). With regard to plaintiffs' trademark
infringement claim, CyraCom argues that they should be dismissed because the United
States Court of Federal Claims lacks jurisdiction to hear claims for trademark
infringement. In the alternative, cyracom argues plaintiffs' complaint should be dismissed
because "Plaintiffs have failed to plead even the basic elements of patent and trademark
infringement. "
The government also filed a motion to dismiss plaintiffs' complaint for lack of
subject-matter jurisdiction pursuant to RCFC 12(hX3), or, alternatively, for judgment on
the pleadings pursuant to RcFc 12(h)(2). In its motion, the government states that it joins
the arguments stated in cyracom's motion to dismiss. According to the government,
plaintiffs' patent infringement claims are barred by the statute of limitations prescribed by
28 U.S.C. S 2501, or, in the alternative, plaintiffs have failed to state a claim for patent
infringement. The government also indicates that the court lacks jurisdiction over plaintiffs'
trademark infringement claim.
In response to the government's motion to dismiss, plaintiffs filed a motion for the
assignment of a pro bono counsel. Although the court participates in a pro bono counsel
referral program for the appropriate cases filed in this court, the court issued an oroer
informing the plaintiffs that the court considered such a referral as premature prior to a
decision on the outstanding jurisdictional motions to dismiss, which raised serious statute
of limitations issues. Moreover, in civil cases, the court does not have an obligation to
appoint counsel to plaintiffs. See Lassiter v. Dep't of Soc. Servs. of Durham Cntv. N.C.,
452 U.S. 18,26-27 (1981) ("[A]n indigent litigant has a rightto appointed counsel only
when, if he loses, he may be deprived of his physical liberty."); see also Pitts v. Shinseki,
700 F.3d 1279, 1283 (Fed. Cir. 2012), cerl. denied, 133 S. Ct. 2856 (2013); Heuss v.
United States,75 Fed. C|.636 (2007) (quoting Lariscevv. United States. 861 F.2d1267,
1270-71 (Fed. Cir. 1988), and noting that the United States Supreme Court has not
recognized a right under the Constitution to appointed counsel in civil cases); Martin v.
United States, 31 Fed. Cl. 756, 757 (1994\ ("The appointment of counsel in a civil case is
not a right, but a privilege justified only by exceptional circumstances.").
Also after the filing of the government and CyraOom's motions to dismiss, the
government and the plaintiffs filed a joint motion to defer their joint preliminary status
report, in which they stated that, "[i]n oraround May 2016, Plaintiff Mark Joseph Sacchetti,
John Sacchetti's brother, passed away." The court ordered plaintiffs to "file a notice with
the court indicating if plaintiffs wish to have Mark Joseph Sacchetti dismissed as a plaintiff
from this case or an executor or executrix appointed in his place to continue in the
litigation." In response to the court's order, on September 12,2016, plaintiffs filed what
they titled a "MOTION TO RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI lN
LITIGATION OF CASE No. 15-1399C. CURRENTLY lN PROGRESS," which stated:
Pursuant to rule 25 (b), (c), of the rules of the U.S.C.F.C., PLAINTIFF JOHN
STEPHEN SACCHETTI, submits to this court a formal request to retain the
estate of deceased brother MARK JOSEPH SACCHETTI to the current
case in progress and do hereby submit along with this formal request, an
original death certificate to the clerk of this court as required.
A certificate of death issued by the county of Los Angeles, California for Mark Joseph
Sacchetti, dated April 19, 20'16, was attached to the motion. The government and third-
pafi defendant CyraCom International, LLC filed responses opposing plaintiffs motion
on the ground that plaintiffs had failed to identify any party to be substituted for Mark
Sacchetti.
Rather than respond to these arguments, on October 3, 2016, plaintiffs filed a
second "MOTION TO RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI," which,
after beginning with the same paragraph as contained in the first motion, stated:
Successor to the deceased party of plaintiff Mark Joseph Sacchetti will be
Mr. Dan Logan . as sole heir to all interests and worldly assets as
bequeathed to Mr. Dan Logan, and by explicit instruction of "The Last Will
And Testamenf" of the late Mark Joseph Sacchetti, (the living will), vests full
and willful joinder, placing his commitment and hence the full scope of all
assets and liabilities pertaining specifically to that estate and its relevant
legal responsibilities. [sic] in continuing litigation, and as such will replace,
and restore, the original 50Yo I 50% partnership arrangement of plaintiffs
oarties.
The motion also states that Mr. Logan has been "given the task and title of 'Executof of
the estate" in Mark Sacchetti's will. Both the government and CyraOom oppose plaintiffs'
new motion on the grounds that the motion fails to show Mr. Logan is a "proper party"
who may be substituted for the deceased under Rules of the Court of Federal Claims
(RcFc) Rule 25(a) (2016)
DtscusstoN
The court turns first to plaintiffs' 'MOTIONISI TO RETAIN THE ESTATE OF
MARK JOSEPH SACCHETTI.' RCFC Rule 25(a) (2016) states: "lf a party dies and the
claim is not extinguished, the court may order substitution of the proper party. A motion
for substitution may be made by any party or by the decedent's successor or
representative." Forthe purpose of Rule 25(a), "[w]hether a person is a proper party is . . .
determined according to state law," and, therefore, "[t]he party seeking substitution must
show that the person to be substituted is a proper representative or successor under state
law." 6 James William Moore, Moore's Federal Practice $ 25.12 (3d ed. 2016) (discussing
Federal Rules of Civil Procedure Rule 25(a), which is identical to RCFC 25(a)). Based on
the documents provided to the court, the relevant state law for the purposes of plaintiffs'
motion to retain is that of California. The address given in plaintiffls second motion for Mr.
Logan indicates that he lives in California, and the purported will of Mark Sacchetti and
the address for Mark Sacchetti listed in filings in this court indicate that he resided in
California prior to his death. Plaintiffs appear to allege that Mr. Logan is both the
representative of Mark Sacchetti's estate and his successor, referring to Mr. Logan in the
second "MOTION TO RETAIN" as the executor of Mark Sacchetti's estate and his sole
heir. Under California law, a person, regardless of whetherthey are named as an executor
in a decedent's will, has no power to administer an estate until the California superior
court has appointed the person a personal representative of the estate and "the person
appointed is issued letters." See Cal. Prob. Code SS 8400(a), (b) (West 2016); see also
id. S 8405 (specifying the form and contents of appointment letters). Because, in this case,
no such letter of appointment, or any other evidence that Mr. Logan has been appointed
the personal representative of Mark Sacchetti's estate by a California court, has been
provided to this court, at this point, this court cannot find that Mr. Logan is a proper
representative of Mark Sacchetti's estate under California law. See Acebal v. United
States, 60 Fed. Cl. 551, 557 (2004) (denying RCFC 25(a) motion for widow who was
listed as executor in deceased plaintiff's will because widow failed to obtain a letter of
administration from state probate court). Similarly, the court cannot find that Mr. Logan is
a proper successor to Mark Sacchetti because plaintiffs have failed to provide any
evidence that Mark Sacchetti's estate has been fully distributed and, hence, that Mr.
Logan is, in fact, legally entitled to the intellectual properties at issue. See Grass Valley
Terrace v. United States, 69 Fed. Cl. 506, 51 1 (2006) ("Requiring thefull distribution of
an estate before a distributee may act as a substitute ensures that the distribution is final
and not subject to any alterations. In addition, it ensures that the substituted pafi is in
I
fact legally entitled to the interests at issue."). Given that no showing that Mr. Logan is a
proper party under RCFC 25(a) has been presented to the court, the "MOTIONIS] TO
RETAIN THE ESTATE OF MARK JOSEPH SACCHETTI'must be denied.
Turning next to the government and CyraCom's motions to dismiss, the court
recognizes that plaintiffs are proceeding pro se, without the assistance of counsel. When
determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by
a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines
v. Kerner, 404 U.S. 519,520-21 (requiring that allegations contained in a pro se complaint
be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'q
denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 9a (2007);
Huohes v. Rowe,449 U.S. 5, 9-10 (1980); Estelle v. Gamble,429 U.S. 97, 106 (1976),
reh'o denied,429 U.S. 1066 (1977); Matthews v. United States,750 F.3d 1320, 1322
(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, atf d,603 F. App'x 947(Fed. Cir.), cert. denied 135 S. Ct. 1909 (2015). "However, "'[t]here is no duty on the part
of the trial court to create a claim which [the plaintiffl has not spelled out in his [or her]
pleading.""' Lenqen v. United States, 100 Fed. Cl. 317 , 328 (2011) (alterations in original)
(quoting Scoqin v. United States,33 Fed. C|.285,293 (1995) (quoting Clark v. Nat'l
Travelers Life lns. Co.,518 F.2d 1167,1169 (6th Cir. 1975))); see also Bussiev. United
States, 96 Fed. Cl. 89, 94, affd, 443 F. App'x 542 (Fed. Cir. 2011); Minehan v. United
States, 75 Fed. Cl. 249,253 (2007). 'While a pro se plaintiff is held to a less stringent
standard than that of a plaintiff represented by an attorney, the pro se plaintiff,
nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance
of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Huqhes v.
Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff
bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'q and
reh'q en banc denied (Fed. Cir. 2002)); see also Shelkofskv v. United States, 1'19 Fed.
Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities in a pro se plaintiffs
complaint, the court'does not excuse [a complaint's] failures."' (quoting Henke v. United
States,60 F.3d 795,799 (Fed. Cir. 1995)); Harrisv. United States, 113 Fed. C|.290,292
(2013) ("Although plaintiffs pleadings are held to a less stringent standard, such leniency
'with respect to mere formalities does not relieve the burden to meet jurisdictional
requirements."'(quoting Minehan v. United States, 75 Fed. Cl. at 253)).
The government and CyraCom have moved to dismiss plaintiffs' complaint for lack
of subject matter jurisdiction pursuant to RCFC 12(hX3). The Tucker Act, 28 U.S.C. S
1491, grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
't0
28 U.S.C. $ 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
Cntv., Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'q and reh'q en banc denied
(Fed. Cir.2007), cert. denied,552 U.S. 1142(2008); Palmerv. United States, 168 F.3d
13't0, 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . ." United States v. Mitchell, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick's Mushroom Serv.. lnc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must. . . identify a
substantive source of law that creates the right to recovery of money damages against
the United States."); Golden v. United States, 118 Fed. CL764,768 (2014). In Ontario
Power Generation. Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. lCoro. v. United States, 178 Ct. Cl. 599,605-06,] 372F.2d
[1002,] 1007-08 t(1967)l (describing illegal exaction claims as claims "in
which 'the Government has the citizen's money in its pocket"' (quoting
Clappv. United States,127 Ct. C|.505, 117 F. Supp.576,580 (1954))... .
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a paymentfrom the treasury." Eastport S.S., 372F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum." ld.; see also lUnited States v. lTestan, 424 U.S.
1392,1 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself . . . can fairly be interpreted as
11
mandating compensation by the Federal Government for the damage
sustained."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly refened to as claims brought under a "money-mandating"
statute.
Ontario PowerGeneration. Inc. v. United States,369 F.3d 1298,'1301 (Fed. Cir.2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S.392,400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell,463 U.S. at 217; Blueport Co.. LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts).") "'lf the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin.,525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the TuckerAct."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant's favor. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint." (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); Fid. & cuar. Ins. Underuriters, Inc. v. United States, BO5
F.3d 1082, 1084 (Fed. Cir.2015); Trusted Inteqration. Inc. v. United States.659 F.3d
1 1 59, 1 163 (Fed. Cir. 201 1).
''Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiffs claim, independent of any
defensethatmaybe interposed." Holleyv. United States,124F.3d1462,1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)), reh'q
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaullev Inv. Grp.. lnc. v. United States, 93 Fed. CL710,
713 (2010). A plaintiff need only state in the complaint "a short and plain statement of the
grounds for the court's jurisdiction," and "a short and plain statement of the claim showing
that the pleader is entitled to relief." RCFC 8(aX1), (2) (2016); Fed. R. Civ. P. B(a)(1), (2)
12
(2016); see also Ashcroft v. lqbal, 556 U.S. 662,677-78 (2009) (citing Bell Atl. Corp. v.
Twomblv, 550 U.S. 544,555-57,570 (2007)). To properly state a claim for relief,
"[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to
support a claim." Bradlev v. Chiron Corp., 1 36 F.3d 1317, 1322 (Fed. Cir. 1 998); see also
McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cn.2007) (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure S 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713,723 (7th Cir. 1981)
("[C]onclusory allegations unsupported by any factual assertions will not withstand a
motion to dismiss."), affd, 460 U.S. 325 (1983). "A plaintiff's factual allegations must'raise
a right to relief above the speculative level' and cross 'the line from conceivable to
plausible."'Three S Consultinq v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting
Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964 (Fed. Cir.), reh'q
denied (Fed. Cn.2014\. As stated in Ashcroft v. lqbal, "[a] pleading that offers 'labels and
conclusions' or'a formulaic recitation of the elements of a cause of action will not do.' 550
U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twomblv, 550 U.S. at 555).
When construed liberally, the plaintiffs' complaint appears to allege that AT&T,
CyraCom, and Language Line, with and/or working on behalf of the United States
Government, infringed two of their patents related to a dual handset phone, the '264 and
the '798 Patents, as well as that one or more of these entities infringed their trademark
for "The You Talk Two Phone." Although the complaint itself does not name the entities
that, along with the federal government, allegedly infringed on plaintiffs' intellectual
properties, three companies, '(AT&T) (Language-Line LLC), and (Cyra-com
intl./co,/Noiance lnc.l," are mentioned in plaintiffs' February 23,2013letter to president
Obama. In the letter, which was attached as an exhibit to plaintiffs' complaint, plaintiffs
appear to allege that these three companies worked in concert with the United States to
infringe on plaintiffs' intellectual property, stating that the three companies are in a "direct
and legal partnership" with the Federal Government and that the "enormous commerce
carried out by these companies" constituted a "a willfully ignored global and domestic
infringement on intellectual property!" Regarding the patent infringement claims,
plaintiffs allege that, and include as exhibits to their complaint excerpts from the '264 and
the '798 Patents to try to show that, they are the inventors and patent holders of a device
they refer to as "The You Talk Two Phone," a telephone that, as described in the '798
Patent, contains "two handsets and circuitry that automatically adjusts internal amplifier
gain to compensate for the extra handset even when not in use." In their complaint,
plaintiffs appear to allege that these patents have been infringed by the United States and
its contractors, stating that the "global manufacturing of' 'DUAL-HANDSET
TELEPHONES" constitutes an "unethical and illegal use of Private Intellectual Property
Rights" by "The United Sfates Federa I Governmenl and awarded subcontractors."
Although the excerpts provided by plaintiffs from the '264 and the '798 Patents
demonstrate that they were issued on February 18, 1997 and August 12, 1997,
respectively, plaintiffs allege in their February 23, 2013 letter to President Obama that the
13
patents were actually granted "in 1993, then suddenly and mysteriously MIA (missing in
action)." Plaintiffs conclude their complaint by seeking damages in the amount of
$200,000,000.00 pursuant to "USC 1498a," apparently a reference to 28 U.S.C. S 1498(a)
(2012), which governs claims for patent and copyright infringement against the United
States and its contractors.
The government and CyraCom both argue that plaintiffs' patent infringement
claims should be dismissed for lack of jurisdiction because they are barred by the statute
of limitations set forth in 28 U.S.C. S 2501. Suits against the United States are subject to
a six-year statute of limitations. According to the statute at 28 U.S.C. g 250't:
Every claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years
after such claim first accrues. . . . A petition on the claim of a person under
legal disability or beyond the seas at the time the claim accrues may be filed
within three years after the disability ceases.
ld. "The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh'q en bancdenied (Fed. Cir.2006),
affd, 552 U.S. 1 30 (2008). The United States Court of Appeals for the Federal Circuit has
indicated that a claim accrues ""'when all events have occurred to fix the Government's
alleged liability, entitling the claimant to demand payment and sue here for his money.',','
$an Carlos Apache Tribe v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting
9gmlsh lndi,?n Nation v. United States,419 F.3d't355, 1369 (Fed. Cir.2005) (quoting
Martinezv. United States,333 F.3d 1295, 1303 (Fed. Cir.2003), cert. denied,540 U.S-.
1177 (2004))), reh'q en banc denied (Fed. Cir. 2011); see also Floorpro, Inc. v. United
States, 680 F.3d 1377, 1381 (Fed. Cir.2012); Martinez v. United States, 333 F.3d at
1303 ('A cause of action cognizable in a Tucker Act suit accrues as soon as all events
have occurred that are necessary to enable the plaintiff to bring suit, r.e., when 'all events
have occurred to fix the Government's alleged liability, entifling the claimant to demano
payment and sue here for his money."' (quoting Naqer Elec. co. v. United states. 177 ct.
Cl.234,240, 368 F.2d847,851 (1966), motion denied, 184 Ct. Ct. 390, 396 F.2d 977(1968)); Hopland Band of Pomo Indians v. United States. Bsb F.2d 1573, 1577 (Fed. Cir.
1988); see also Brizuela v. United States, 103 Fed. Ct.635,639, affld, 492F. App,x97
(Fed. cir. 2012), cert. denied 133 s. ct. 1645 (2013). A Judge of the united states court
of Federal Claims has noted that:
It is well-established that a claim accrues under section 2501 ,When,all
events have occurred to fix the Government's alleged liability, entiiling the
claimant to demand payment and sue here for his money.',, Martinez v.
United States,333 F.3d 1295, 1303 (Fed. Cir.2003) (en banc), cert. denied.
540 U.S. 1177 (2004) (quoting NaoerEtec. Co. v. United States,368 F.2d
847,851 (Ct. Cl. 1966)); see also Samish,419 F.3d at 1369. Because, as
noted, this requirement is jurisdictional, plaintiff bears the burden of
14
demonstrating that its claims were timely. See Alder Terrace, lnc. v. United
States, 161 F .3d 1372, 1 377 (Fed. Cir. 1998); Entines v. United States, 39
Fed. C|.673,678 (1997), affld, 185 F.3d 881 (Fed. Cir.), cert. denied,526
U.S. 1117 (1999); see also John R. Sand & Gravel Co. v. United States,
457 F.3d 1345, 1362 (Fed. Cir. 2006) (Newman, J., dissenting); Revnolds
v. Armv & Air Force Exch. Serv. , 846 F .2d 746, 748 (Fed. Cir. 1988).
Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), aff'd, 465
F. App'x 952 (Fed. Qn.2012); see also Klamath Tribe Claims Comm. v. United States,
97 Fed. Cl. at209 (citingAlderTenace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed.
Cir. 1998)). Accrual of a claim is "'determined under an objective standard"' and plaintifi
does not have to possess actual knowledge of all the relevant facts in order for a cause
of action to accrue. FloorPro, Inc. v. United States, 680 F.3d at 1381 (quoting Fallini v.
United States,56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied,517 U.S. 1243 (1996)).
Although the accrual of a claim pursuant to 28 U.S.C. S 25Q1 may, in certain limited
scenarios, be suspended "until the claimant knew or should have known that the claim
existed," Holmes v. United States,657 F.3d 1303, 1317 (Fed. Cir.2011) (quoting Younq
v. United States,529 F.3d 1380, 1384 (Fed. Cir.2008)), a plaintiffs aileged "[i]gnorance
of rights which should be known is not enough" to suspend the accrual of a claim. Braude
v. United States.585 F.2d 1049 (Ct. Cl. 1978) (quoting JapaneseWarNotes Claimants
Ass'n v. United States. 373F.2d 356,358-59 (Ct. Cl. 1967) cert. denied,3Bg U.S.971
(1967)). Rather, the accrual suspension doctrine is "'strictly and narrowly applied,"' and
the accrual date of a cause of action will be suspended in onlyvery limited circumstances:
"[the plaintiffl must either show that defendant has concealed its acts with the result that
plaintiff was unaware of their existence or it must show that its injury was 'inherenfly
unknowable' at the accrual date." See Martinez v. United States. 333 F.3d at 1319(quoting Welcker v. United States. 752 F.2d 1577, 1580 (Fed. Cir. 1985))' see atso
Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1492 (Fed.
cir. 1994); catawba Indian Tribe v. United States. 9BzF.2d 1s64, 1sz1-72 (Fed. cir.
1 993); Holmes v. United States, 657 F.3d at 1317; Welcker v. United States
,752 F .2d at
1580; Japanese War Notes Claimants Ass'n v. United States, 373 F.2d at 359.
The United states has waived sovereign immunity over patent infringement claims
against the federal government and its contractors, and provided the United states court
of Federal Claims with jurisdiction to hear such claims, under 28 U.S.C. S 1498(a).
Section 1498(a) states, in relevant part:
Whenever an invention described in and covered by a patent of the United
States is used or manufactured by or for the United States without license
of the owner thereof or laMul right to use or manufacture the same, the
owner's remedy shall be by action against the United States in the United
States Court of Federal Claims for the recovery of his reasonable and entire
compensation for such use and manufacture. . .
15
For the purposes of this section, the use or manufacture of an invention
described in and covered by a patent of the United States by a contractor,
a subcontractor, or any person, firm, or corporation for the Government and
with the authorization or consent of the Government, shall be construed as
use or manufacture for the United States.
28 U.S.C. g 1498(a) (2012): see also Zoltek Corp. v. United States,672 F.3d 1309, 1312
(Fed. Cir. 2012)."A cause of action under28 U.S.C. g 1498 accrues'when the accuseo
[instrumentality] is first available for use."' Flovd v. United States, 125 Fed. Cl. 183, 1Bg
(2016) (alteration in original) (quoting Unitrac. LLC v. United States. 113 Fed. Cl. 156,
160 (2013), aff'd. 589 Fed. App'x. 990 (Fed. Cn.2015). "Each device, i.e., each individual
member of the universe of infringing devices . . . can be taken only once in its lifetime,
and if that taking occurs prior to the six-year period which immediately precedes the filing
of the lawsuit in the court of claims, then recovery as to that particular device is barred
forever by 28 U.S.C. s 2501." Starobin v. United States. 662 F.2d 747,749-SO (Ct. Cl.
1 981 ) (footnote omitted).
To be timely, therefore, any cause of action plaintiffs may have for patent
infringement must have been filed in this court within six years after the devices that
allegedly infringed on plaintiffs' patents, in this case the dual-handset telepnones
produced by cyracom and Language Line, were first made available for use. plaintiffs,
complaint was filed on November 19, 201s. Therefore, plaintiffs must be able to snow
that the allegedly infringing dual-handset telephones were made available no earlier than
November 19, 2009, six years before the filing of their complaint on November 19,201s.
Although plaintiffs fail to specify in their complaint when the devices they alleged infringed
on their patents were first made available for use, in their February 23,2013 letter to
President obama, plaintiffs state that AT&T, Language Line, and cyracom, "in direct and
legal partnership" with the Federal Government, have been engaging in "a willfully
ignored global and domestic infringement on intellectuat proplrtyl; "since 199s to
the present, 2013." lt 1995 is the operative date of availability, 1995 fllls far outside the
six year statute of limitations. Further, any alleged infringement that may have continued
to occur after 1995 "to the present" would not have served to alter or ioll the accrual of
plaintiffs' cause of action. See also unitrac, LLC v. united states, 113 Fed. cl. at 160
("[O]ngoing infringement is irrelevant to this Court's jurisdiction in tfre context of the statute
of limitations." (citing Bissell y. united states, 41 Fed. App'x.414,416 (Fed.cir.2002))).
similarly, the documents plaintiffs attach to their complaint specifically related to
Cyraoom and Language Line both show that any potential cause of action plaintiffs might
have had would have accrued more than six years prior to the filing of their complaint.
Two of the documents plaintiffs attach to their complaint regarding cyiacom, the undated
press announcement and advertisement and the press release from septembe r 26,2007
.
both state that cyracom had made a "dual-handset phone" publicly available in 1995.
The 2007 press release states that, at that time, cyracom had also made available a
"dual-handset cordless phone." with regard^to Language Line, the only reference
to a
to
potentially infringing product in plaintiffs' filings comes in the form of what appears to be
the screenshot from Language Line's website announcing a "new telephone with dual
handsets." The screenshot is dated October 26, 2009, over six years prior to the filing of
plaintiffs' complaint in this court.2 Therefore, the possible claims for patent infringement
that plaintiffs included in their complaint, even when interpreted liberally, are barred by
the statute of limitations under 28 usc S 2501.3 with respect to any patent infringement
claims alleged by plaintiffs, the government and CyraCom's motions to dismrss are
granted.
Turning to plaintiffs' trademark infringement claims, plaintiffs fail to maxe, or
provide any evidence that could be construed as making specific allegations that anyone
infringed on their "The You Talk rwo Phone" trademark other than the general statement
in pfaintiffs' February 23, 2013 letter to President obama, that AT&T, Language Line,
cyracom, and the federal government engaged in "a willfully ignored glouat ano
domestic infringement on intellectual propertyl". claims for irademark infringement
are governed by the Lanham Act, 15 U.s.c. 1051, et seq. (2012). setting aside rinether
plaintiffs' trademark allegations are sufficiently detailed to state a claim upon which relief
can be granted, which this court believes they are not, this court lacks jurisdiction ro near
any claims brought underthe Lanham Act, which jurisdiction lies exclusively in the United
states District courts. see 15 u.s.c. S 1121(a) (2012) ("The district and territorial courts
of the United States shall have original jurisdiction and the courts of appeal of the United
2 The documents plaintiffs attach to their complaint related to AT&T do not provide any
evidence that AT&T ever made available a dual-handset phone or any other device that
could potentially be construed as infringing on plaintiffs' alleged paients. At best, the
March 25, 1999 New York rimes article provided by plaintiffi could be interpreted as
showing that AT&T was involved in some sort of partnership with Language Line which,
potentially, could have involved Language Line's dual-handset phone. Altnougfr
the court
does not believe such an allegation is sufficient to state a claim upon which-relief could
be granted, the court need not even decide this issue because any possible claim arising
out of any alleged actions by AT&T related to a partnership with Linguage Line would be
barred by the statute of limitations for the same reasons as plaintiffsi clJims arising from
Language Line's actions are barred. Therefore, to the extent plaintiffs' complaint can oe
construed as alleging any claims arising out of the actions of AT&T, such claims are
d ismissed.
3 Plaintiffs have failed to allege or proffer any evidence showing that the accrual of their
patent infringement claims should be suspended on the grounds that ,,defendant has
concealed its acts" or that "its injury was 'inherenfly unknowable' at the accrual date.,, see
Martinez v. United states. 333 F.3d at 1319 lquoiing welcker v. united States. 7s2 F-ie
at 1580). such an argument also would fail in this case as there is evidence in the
submissions to the court that plaintiffs actually were aware of the existence of the alleged
infringement over six years prior to filing their complaint. Plaintiffs indicate in their motion
for assignment of pro bono counsel that, in "the year 200g," John sacchetti ,,fell over rn
shock" after seeing two "cYRAcoM-BLUE,.DItAL-HArvDsErfs/'while in the hospitat.
17
States (other than the United States Court of Appeals for the Federal Circuit) shall have
appellate jurisdiction, of all actions arising under [the Lanham Act.]"); see also Lockridqe
v. United States,218 Ct. Cl. 687, 689 (1978) ("We therefore conclude that we have no
jurisdiction over claims for trademark infringement."); Proxtronics Dosimetrv, LLC v.
United States, _F.3d. Cl _,2016W1 5757156, at"11 (Fed. Cl. Sept.30,2016) ('lt
is an unremarkable proposition that the Court of Federal Claims lacks jurisdiction over
Lanham Act claims."). Therefore, with respect to any possible claims for trademark
infringement that plaintiffs' complaint may be construed as alleging, the government and
CyraCom's motions to dismiss are granted.
CONCLUSION
Plaintiffs have failed to show that the requirements of RCFC 25(a) for the
substitution of a proper party have been met. Plaintiffs' September 12, 2016 and October
3,2016 "MOT|ON[S] TO RETATN THE ESTATE OF MARK JOSEPH SACCHETTT,'
therefore, are DENIED. Plaintiffs' claims for patent infringement are barred by the statute
of limitations, and this court lacks jurisdiction to hear plaintiffs' trademark infringement
claims. The motions to dismiss filed by the United States and the third-party defendant
CyraCom International, Inc., therefore, are GRANTED. Plaintiffs' complaint is
DISMISSED. The clerk shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
zL /tz"/,-
MARIAN BLANK HORN
Judge
18